A blog about digital rhetoric that asks the burning questions about electronic bureaucracy and institutional subversion on the Internet.

Thursday, April 24, 2008

The Elephant in the Room

As someone employed in higher education who also works on the politics of intellectual property issues, I feel that I've omitted discussing what could be called "the elephant in the room" on this blog at all during the past year Unfortunately, HR 4137, the College Opportunity and Affordability Act of 2007, which was introduced by Congressman George Miller, is yet another piece of law designed to mandate that educational institutions police everyday digital media practices. Unlike the equally misguided DOPA, which sought to require schools and libraries to block access to social networking sites, there are even more powerful lobbies at work from the entertainment industry pushing specifically for more electronic monitoring of college campuses.

My better half was one of Miller's interns in his youth, so it's strange to associate this lawmaker's name with such a troubling piece of legislation. Although ostensibly about improving the dire financial aid situation of many college students, including returning veterans of the Iraq War who are finding themselves with much less than the GI Bill of the previous generation and who would otherwise be subject to increasingly predatory lenders, this proposal also contains what might seem to be a minor proviso that requires that certain kinds of peer-to-peer networks be disabled for institutions to be eligible for the federal student aid that the bill makes possible. The key wording is in Section 495, a "technical amendment" that specifies that participating colleges must do the following:

(1) make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copyrighted materials required to be disclosed under section 485(a)(1)(P); and

(2) develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.

The problem with this approach, as Alan Liu has pointed out, is that universities are ill-equipped to be "hall monitors" and that this focus on "policing rather than policy" inevitably means that IT people are forced to choose the most conservative interpretation of proper procedure out of fear of possible legal consequences from noncompliance. In short, this usually means disabling bit-torrent technologies first and foremost, despite the fact that there are many reasons to use this distributed system that takes advantage of a very efficient algorithm capable of reassembling packets of data that encode sounds and images. Unlike commercial online audio and video applications that strain bandwidth when more users access a given site, bit torrent functions even more rapidly with a larger pool of users. To documentary film makers and eyewitness activists with limited budgets for web hosting, these kinds of file-sharing technologies can allow much cheaper legitimate distribution of products by nonprofit creators.

Although Penn State President Graham Spanier once appeared in a regrettable industry-sponsored video, he is one of the signatories on this letter that complains that "the Secretary of Education" would become "an agent of the entertainment industry" as this administration official creates an annual list of the Top 25 campuses associated with illegally downloading. As Ars Technica has noted, the entertainment industry's figures on downloading have been notoriously inaccurate in the past. Furthermore, Spanier and other college presidents object to how college campuses are being singled out for selective punishment for a behavior taking place in many sectors of society. The Electronic Frontier Foundation has also been following the issue with concern.

Yet, as CNET reports, Democrats were solidly in favor of the intellectual property stance of the measure. The companies that make screening software also seem very happy with this direction in Congress, as this web page with a SafeMedia press release shows.